Fight for Public Domain Goes On

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Fight for Public Domain Goes On

Digital archivists aren't giving up on their efforts to free out-of-print books, movies and music from overreaching copyright laws, despite a recent setback in court.

District Judge Maxine Chesney dismissed the case filed by Brewster Kahle, founder of the Internet Archive, and Rick Prelinger, founder of the Prelinger Archives, in late November. The archivists allege that the government's sweeping changes in copyright laws are unconstitutional because they lock up creative works that should be returned to the public domain. The government filed a motion to dismiss, and the motion was granted Nov. 19.

Kahle – who wants to include out-of-print books and films in his nonprofit archive for educational and research purposes – and Prelinger will appeal the case to the 9th U.S. Circuit Court of Appeals in the next several weeks, said Chris Sprigman, a fellow at the Stanford Law School Center for Internet and Society. Sprigman, one of the lawyers representing the plaintiffs, said First Amendment matters are normally dealt with at the appeals court level of the judicial system anyway.

The plaintiffs challenged the constitutionality of four copyright laws: the Copyright Renewal Act of 1992, the Sony Bono Copyright Term Extension Act, the Copyright Act of 1976 and the Berne Convention Implementation Act.

For most of the 20th century, artists and creators had to register with the copyright office to get a copyright, and were granted a term of 28 years. At the end of that term, they had to renew their copyright to get a 28-year extension. Many didn't bother to renew and the work entered the public domain. But Congress passed several laws that gave copyright owners far more power: It removed the registration and renewal requirements, so now anything "fixed in a tangible medium" is under copyright, and the term is the life of the creator plus 70 years.

The plaintiffs claim that removing registration and renewal requirements and expanding the term of copyright have made it virtually impossible for works to enter the public domain. Now, out-of-print albums and books – many of which are not commercially viable – are simply rotting away unused, but are still protected by copyright.

"The move from 'opt-in' to 'opt-out' creates a significant problem in the copyright law," Sprigman said. "It burdens speech, and we're going to press that argument on appeal."

Sprigman, who said the judge decided the case on papers filed in the case and didn't feel a hearing was necessary, said he's hopeful that the plaintiffs will have better luck in the 9th Circuit.

"We have the wonderful opportunity of this digital technology, but unfortunately it is being tangled up in laws that were passed for very different purposes," said Kahle. "For the orphans, it's just collateral damage for the last 40 years of copyright expansion."

He said that kids are being denied the kind of massive library he had when he grew up. Plenty of the volumes in the library were out of print. Now, as more children use the internet for their library, they should be able to access the same materials. But getting permission to digitize those works can be difficult, especially for materials that are decades old.

Kahle said Congress was trying to protect the works that were making corporations money, and in the process made sweeping changes to the structure of copyright itself.

He said he's committed to bringing these valuable resources to the public.

"I'm kind of an optimist. When you have common sense and an important issue, then there's reason to be hopeful," Kahle said. "And it's certainly worth the effort."